Citation NR: 9629600
Decision Date: 10/22/96 Archive Date: 10/30/96
DOCKET NO. 94-10 876 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for residuals of a left
knee injury.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
W. E. Sampson, Associate Counsel
INTRODUCTION
The veteran's active military service extended from July 1968
to May 1977.
This appeal comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1992 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida. That rating decision denied service
connection for residuals of a left knee injury.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the RO committed error in denying
service connection for residuals of a left knee injury. He
argues that he injured his knee while in combat in Vietnam,
and has been experiencing trouble with it since that time.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim for
service connection for residuals of a left knee injury is
well grounded.
FINDINGS OF FACT
1. There is no post service evidence showing continuity of
symptomatology associated with the veteran's left knee
condition.
2. There is no medical opinion, or other competent evidence
linking a left knee condition to the veteran's active
military service.
3. The veteran has not presented a plausible claim for
service connection for left knee disability.
CONCLUSION OF LAW
The appellant has not presented a well-grounded claim for
service connection for residuals of a left knee injury, and
therefore there is no statutory duty to assist the appellant
in developing facts pertinent to this claim. 38 U.S.C.A.
§§ 101(16), 1110, 1131, 5107(a) (West 1991); 38 C.F.R.
§ 3.303(b) (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West
1991); 38 C.F.R. §§ 3.303, 3.304 (1995).
The law provides that “a person who submits a claim for
benefits under a law administered by the Secretary shall have
the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded.” 38 U.S.C.A. § 5107(a) (West 1991).
Establishing a well-grounded claim for service connection for
a particular disability requires more than an allegation that
the disability had its onset in service or is service
connected; it requires evidence relevant to the requirements
for service connection and of sufficient weight to make the
claim plausible and capable of substantiation. See Franko v.
Brown, 4 Vet.App. 502, 505 (1993); Tirpak v. Derwinski, 2
Vet.App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet.App. 78,
81 (1990).
The three elements of a “well grounded” claim are: (1)
evidence of a current disability as provided by a medical
diagnosis; (2) evidence of incurrence or aggravation of a
disease or injury in service as provided by either lay or
medical evidence, as the situation dictates; and, (3) a
nexus, or link, between the inservice disease or injury and
the current disability as provided by competent medical
evidence. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995);
see also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303
(1995).
Generally, competent medical evidence is required to meet
each of the three elements. However, for the second element
the kind of evidence needed to make a claim well grounded
depends upon the types of issues presented by a claim.
Grottveit v.Brown, 5 Vet.App. 91, 92-93 (1993). For some
factual issues, such as the occurrence of an injury,
competent lay evidence may be sufficient. However, where the
claim involves issues of medical fact, such as medical
causation or medical diagnoses, competent medical evidence is
required. Id. at 93. Lay evidence is also acceptable to
show incurrence in service if the veteran was engaged in
combat and the evidence is consistent with the circumstances,
conditions and hardships of such service, even though there
is no official record of such incurrence. 38 U.S.C.A. § 1154
(West 1991); 38 C.F.R. § 3.304(d) (1995).
In this case, the determinative issue presented by this claim
is whether any current disability is etiologically related to
active service. The Board concludes that medical evidence is
needed to lend plausible support for this issue because it
involves questions of medical fact requiring medical
knowledge or training for its resolution. Caluza v. Brown, 7
Vet.App. 498, 506 (1995); see also Layno v. Brown, 6 Vet.App.
465, 470 (1994); Espiritu v. Derwinski, 2 Vet.App. 492, 494-
95 (1992).
In this case, the veteran is essentially claiming that he
injured his left knee during combat while stationed in
Vietnam in 1971, and that the problems he is experiencing
with his left knee are as a direct result of the knee injury.
Service medical records appear to be complete. A report of
medical examination at entry into active service in June 1968
is negative for any left knee complaint or condition. A
photocopy of a July 1971 Class III Deros physical examination
report received from the veteran in 1992 contains the
notation “[l]eft knee injured 2 May 71.” This notation does
not appear on the original report of the examination
contained with the original service medical records. In
November 1976, he was hospitalized for what was described as
an adult situational reaction, at which time he was observed
with a swollen left knee. The separation physical dated
January 1977 includes a report of the veteran’s medical
history with the notation “knee injury,”but he denied having
or having had a trick or locked knee. Physical examination
of the lower extremities was normal. There is no evidence
that the veteran’s left knee condition during service was
ever diagnosed as chronic.
In a personal hearing before a member of the Board in April
1996, he testified that he had experienced difficulty with
his left knee continuously from the date of discharge, but
had not sought medical treatment because of the expense. A
letter from his mother submitted to the VA and dated February
1993 states that “[s]ince my [son’s] return from [Vietnam],
he has had [recurring] problems with his injured left knee.”
The only medical evidence addressing the veteran’s current
left knee condition are a report of an X-ray taken in
September 1995 showing a history of injury and “degenerative
changes of the patella-femoral joint” of the left knee, and
an explanation of determination of a denied claim for Social
Security disability benefits, referring to December 1993 and
February 1994 physicians’ reports, that mentions X-ray
studies of the knee were within normal limits, but that there
were slight knee problems. There is no evidence relating any
current disability the veteran may have to an injury in
service.
The veteran’s sworn testimony and other statements made by
the veteran and his mother are not competent evidence to
establish the etiology of his left knee condition. Medical
diagnosis and causation involve questions that are beyond the
range of common experience and common knowledge and require
the special knowledge and experience of a trained physician.
Because neither he nor his mother has indicated that they are
physicians or other health care providers, they are not
competent to make a determination that his current left knee
condition is the result of an injury over 20 years ago rather
than the result of an intercurrent cause. See Espiritu,
2 Vet.App. at 495; Grottveit v. Brown, 5 Vet.App. 91, 93
(1993).
The veteran fails to show the required nexus between any
current disability he may have of his left knee, and any
inservice injury he may have incurred. See Caluza, 7
Vet.App. at 506. There is no medical evidence establishing a
link to the veteran's active military service. See Rabideau
v. Derwinski, 2 Vet.App. 141, 144 (1992); Franko v. Brown, 4
Vet.App. 502, 505 (1993). Regulations require a continuity
of symptomatology to link the post-service symptoms to injury
during service when the fact of chronicity in service is not
adequately supported. 38 C.F.R. § 3.303(b) (1995).
The veteran does not meet the third element required for the
claim to be well grounded. See Caluza, 7 Vet.App. at 506.
See also Dean v. Brown, 8 Vet.App. 449, 455 (1995). Because
failure to meet any of the required elements of a well-
grounded claim is sufficient to render the claim not well
grounded, the Board need not consider the other elements of
whether he has a current left knee disability and whether an
injury to his left knee was incurred in service.
The Board has thoroughly reviewed the claims file, but finds
no evidence of a plausible claim for residuals of a left knee
injury. Since the veteran has not met his burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well grounded, it
must be denied. See Boeck v. Brown, 6 Vet.App. 14, 17 (1993)
(if a claim is not well-grounded, the Board does not have
jurisdiction to adjudicate it).
Where the veteran has not met this burden, the VA has no duty
to assist him in developing facts pertinent to his claim,
including no duty to provide him with another medical
examination. 38 U.S.C.A. § 5107(a) (West 1991); Rabideau,
2 Vet.App. at 144 (where the claim was not well-grounded, VA
was under no duty to provide the veteran with an
examination). However, where a claim is not well-grounded it
is incomplete, and depending on the particular facts of the
case, VA may be obliged under 38 U.S.C.A. § 5103(a) to advise
the claimant of the evidence needed to complete his
application. See Robinette v. Brown, 8 Vet.App. 69, 77
(1995). In this case, however, the RO has complied
substantially with this obligation in its November 1993
statement of the case and its May 1994 and February 1996
supplemental statements of the case. Unlike the situation in
Robinette, the veteran has not put VA on notice of any other
records that would prove his claim.
ORDER
Because it is not well grounded, the veteran's claim for
service connection for residuals of a left knee injury is
denied.
HOLLY E. MOEHLMANN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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